Factual and Procedural Background
The case concerns care proceedings involving a child ("A") and allegations of sexual abuse against the stepfather ("Second Respondent") and the mother's ("First Respondent") failure to protect the child. The judge made findings of fact that the stepfather perpetrated sexual abuse against A and that the mother failed to appropriately respond to or protect A from that abuse. The stepfather appeals the findings with leave granted, and the mother applied late for leave to appeal. The appeals were heard together due to overlapping issues.
The fact-finding hearing lasted 13 days with 11 witnesses, including the mother and stepfather, but the child did not give oral evidence. The judge issued a detailed judgment after reviewing all evidence and submissions. The appeals challenge the judge's findings on the basis that the judge failed to properly assess the credibility and reliability of the child, who had retracted her allegations multiple times, and that there were procedural and evidential failings in how the child's allegations were recorded and investigated.
Between 2017 and 2022, the child made or repeated various allegations of sexual abuse by the stepfather, initially disclosed to the mother but not reported outside the family until 2022. In January 2022, the child repeated allegations to school staff and police, but retracted them in the only Achieving Best Evidence (ABE) interview conducted. Subsequent social work and police investigations were closed for lack of evidence. In November 2022, further disclosures were made, leading to arrests and care proceedings initiated in late November 2022. The mother and stepfather were excluded from the family home as part of bail conditions. The child repeatedly retracted allegations during late 2022 and early 2023. The Local Authority at one point sought to withdraw the proceedings but later continued them.
The judge found that the stepfather sexually abused the child on multiple occasions between ages 6 and 10, including showing pornography, digital penetration, inappropriate touching, and coercion to perform sexual acts. The mother was found to have failed to protect the child, having been informed of allegations in or around 2017 but failing to report them and responding inadequately to subsequent disclosures. The mother was also found to have caused emotional harm to the child by shaving her head as punishment for alleged lying.
Legal Issues Presented
- Whether the judge erred in finding sufficient evidence to support findings of sexual abuse by the stepfather.
- Whether the judge failed properly to assess the credibility and reliability of the child, particularly in light of her multiple retractions.
- Whether the judge improperly shifted the burden of proof onto the mother and stepfather by adverse credibility findings.
- Whether the judge failed to properly consider inconsistencies and contradictions in the child's allegations.
- Whether the judge appropriately assessed the mother's failure to protect the child in the context of the child's retractions.
Arguments of the Parties
Appellant's Arguments (Stepfather)
- The judge wrongly concluded there was sufficient evidence to support findings of sexual abuse.
- The judge failed to adequately analyse and weigh professional evidence regarding the child's retractions and position on retraction.
- The judge did not address inconsistencies and contradictory aspects of the child's allegations.
- The judge failed to properly weigh evidence corroborating the child's reasons for making false allegations.
- The judge speculated incorrectly about pressure placed on the child by the mother to retract allegations.
- The judge placed excessive weight on the parents' credibility, effectively reversing the burden of proof.
Appellant's Arguments (Mother)
- The judge placed too much weight on the mother's credibility, effectively reversing the burden of proof.
- The judge wrongly found that the mother failed to protect the child despite the child's repeated retractions of allegations.
Respondent's Arguments (Local Authority and Children's Guardian)
- The Local Authority defended the judgment and opposed the appeals.
- The Children's Guardian for the child's siblings also supported the judgment and opposed the appeals.
Child's Position
- The child supports the appeals by the mother and stepfather, maintaining her retractions and explanations for false allegations.
- The child expressed a desire to avoid her life and those she loves being affected by the court's findings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ |
High hurdle for overturning findings of fact by the trial judge. |
Counsel acknowledged the significant hurdle in persuading the court to overturn the fact findings. |
| Volpi & Anor v Volpi [2022] EWCA Civ 464 |
Principles for appeals on pure questions of fact, including:
- Appellate courts should only interfere if the trial judge was plainly wrong.
- The burden of proof remains with the party who bears it.
- The trial judge's assessment of evidence weight is pre-eminent.
|
The court applied these principles to uphold the trial judge's findings as not plainly wrong or irrational. |
| Re S (A Child) (Findings of Fact) [2023] EWCA Civ 346 |
Failure to follow procedural guidance does not preclude findings of abuse if evidence as a whole justifies it. |
The judge's findings were upheld despite acknowledged deficiencies in procedural adherence. |
Court's Reasoning and Analysis
The court carefully considered the grounds of appeal in light of established appellate principles concerning findings of fact. It emphasized the high threshold for overturning such findings, requiring that the trial judge be plainly wrong or that the findings be irrational or unsupported by the evidence.
The court noted the judge's detailed and painstaking assessment of the evidence, particularly the contemporaneous allegations made in 2017 and the subsequent inconsistent and contradictory accounts from the mother and stepfather. The judge's adverse credibility findings against both were supported by inconsistencies in their evidence and attempts to downplay or deny key facts.
The court rejected the appellants' contention that the judge shifted the burden of proof, explaining that adverse credibility assessments do not equate to reversal of the burden, which remained with the Local Authority.
Regarding the child's allegations and retractions, the court found the judge's approach balanced and rational. The judge considered the context in which retractions were made, including pressure on the child following the mother's arrest and family separation, and found the original allegations credible despite inconsistencies and procedural deficiencies in investigations and recordings.
The judge acknowledged shortcomings in professional practice, including failure to adhere to ABE interview protocols and poor record-keeping, but the court accepted the judge's finding that such failings did not preclude the making of findings of abuse where the evidence justified it.
The court upheld the findings of sexual abuse against the stepfather and the failure of the mother to protect the child, including the emotional harm caused by the mother's punitive actions.
Holding and Implications
The court dismissed the stepfather's appeal and refused the mother's application for permission to appeal.
The direct effect of this decision is that the findings of fact made by the trial judge, including the sexual abuse by the stepfather and the mother's failure to protect, remain intact. There are no new legal precedents established by this ruling. The judgment confirms the appellate courts’ deference to trial judges’ fact-finding in complex and sensitive child protection cases, particularly where credibility assessments are central.